### West Virginia Department of Environmental Protection ADVISORY COUNCIL MEETING MINUTES Tuesday, June 24, 2008 601 57 th

### Street, SE, Charleston, WV

West Virginia Room – 3 rd

### Floor IN ATTENDANCE : Members of the Council : Jackie Hallinan Karen Price Bill Raney Rick Roberts DEP: Randy Huffman Cabinet Secretary Lisa McClung Deputy Cabine t Secretary and Director, Division of Water and Waste Management Raymond Franks II General Counsel Karen Watson Associate General Counsel Kathy Cosco Communications Director Pam Nixon Environmental Advocate Ken Politan Mining & Reclamation Lewis Halstead Mining & Reclamation Charlie Sturey Mining & Reclamation Carroll Cather Water & Waste Management Don Martin Land Restoration Brian Long Water & Waste Management Dan Arnold Water & Waste Management Mike Zeto Environmental Enforcement Terrie Sangid Water & Waste Management Jim Mason Air Quality Mike Johnson Water & Waste Management Kathy Emery Water & Waste Management Scott Mandirola Water & Waste Management Visitors: Tom Boggs Chamber of Commerce Don Garvin WV Environmental Council Ruth Lemmon WV Auto/Truck Dealers Association OLD BUSINESS :

### 2 Secretary Huffman called the meeting to order at1:35 p.m., and he announced that Members Lisa Dooley and Larry Harris would not be attending. On motion made by Mr. Raney and seconded by Ms. Hallinan, the Council approved the minutes from the March 18, 2008 meeting. Secretary Huffman then ceded the floor to Mr. Franks. NEW BUSINESS : Mr. Franks noted that for the 2009 regular legi slative session, DEP was proposing changes to 20 rules, grouped by Division for presentation to th e Council. Depending on who had shepherded the rule through its initial drafting, either Mr. Franks or Ms. Watson would lead the discussion, with program administrators available to assist in answering the Council’s questions. Ms. Watson presented 60 CSR 3, the “Brownfields” Ru le. Ms. Watson explained that the Rule was currently pending before the Secretary of State for authorization as an emergency rule, and that the proposed changes included adjustments to the “de mi nimis” table and enhanc ing DEP’s flexibility in obtaining risk assessments. Ms. Price referred to a letter recently sent to DE P seeking clarification of the Rule’s provisions concerning land use covenants and long-term mainte nance agreements. Secretary Huffman stated that the letter would be retrieved and the issue noted for further consideration by the agency. Mr. Raney inquired whether the Council could reco mmend changes to the rules as presented. Ms. Watson responded in the affirmative. Mr. Raney then asked whether written comments, such as those submitted by Mr. Harris prior to the meeting, would be appended to th e minutes. Mr. Franks responded in the negative, and Ms. Watson expounded that Mr. Harris’s comments would be summarized and addressed orally during the discussion of the particular rules involved. Mr. Franks then presented 38 CSR 2, the Surface Mi ning Reclamation Rule. Mr. Franks explained that the proposed changes would expand the Secret ary’s oversight of “approved persons” authorized to render technical certifications contained within mining permit applications, and would clarify certain collateral activities as being within the scopeof requests for incidental boundary revisions to existing permits. Mr. Franks also noted that the proposed Rule would set forth more relevant and exacting criteria for the Secretary to consider in evaluating applications for revisions. Mr. Raney inquired generally about the provisions with respect to approved persons. Secretary Huffman replied that the increased oversight is n ecessary to improve the in itial quality of the permit applications, such that the delays occasioned by subsequent corrections would be reduced or eliminated. Mr. Raney asked whether approved pers ons could include anyone other than engineers, and Mr. Halstead responded that the definition ex tended to surveyors and geologists. Mr. Raney noted the need to establish a procedure for suspen sion or revocation to limit the agency’s unfettered discretion, to which Secretary Huffm an and Mr. Franks replied that the Rule provided for notice and hearing prior to curtailing the privileges of anyone on the approved-person list.

### 3 Ms. Watson presented 47 CSR 30, establishing NPDES requirements for coal mining facilities. Ms. Watson explained that the proposed changes were relatively minor, designed to enhance consistency with the non-coal rule, to allow for digital signatures, and to permit correction of clerical errors. The Council then considered the Air Quality rule s. Mr. Franks presented 45 CSR 1 and 45 CSR 26, relating to control and reduction of nitrogen oxi des from, respectively, non-electric and electric generating units, the latter by means of a budget tradi ng program. The rules are to be repealed in their entireties, and Mr. Mason explained that both are being subsumed within the Clean Air Interstate Rule program. Mr. Franks then presented 45 CSR 8, the Ambient Ai r Quality Rule. Mr. Franks explained that the 1-hour primary and secondary ozone standards were being replaced with 8-hour standards, with the maximum tolerance being reduced slightly. Mr. Raney inquired as to the practical effect of the proposed change, particularly with regard to wh ether non-compliance areas within the State might be expanded. Mr. Mason replied that an expansion mi ght occur, but that it wa s difficult to predict at this early stage. Mr. Mason added that the time-period increase would inevitably lead to more accurate measurements. Ms. Watson presented 45 CSR 13, governing permits for constructing and modifying non-major stationary sources of air pollutants. Ms. Wats on explained that the Rule was being amended to reflect the recent statutory changes reducing the la g time for issuing permits and authorizing certain pre-permit construction. It was noted that Mr. Harris had submitted in writing his concern that courts would be loath to enforce agency cease-and-desist orders based on defects discovered during the permitting process after construction had already begun. Ms. Watson pointed out that the statute had been carefully crafted to avoid facile invo cation of detrimental reliance, with Mr. Franks observing that the Rule strove to conform to the statute. Ms. Price wondered whether one or more of the timeframe provisions included within the existi ng Rule had been inadve rtently omitted from the proposed version. Ms. Watson responded that the Rule had been carefully checked for completeness, but that she would once again verify the language to assure its accuracy. Mr. Franks presented 45 CSR 14, governing permits for constructing and significantly modifying major stationary sources of air pollutants. Mr. Franks explained that references to pollution control projects and clean units were deleted in accordance with a federal appellate court decision vacating those provisions. Mr. Franks went on to present 45 CSR 16, 45 CSR 25, and 45 CSR 34, relating respectively to performance standards for new stationary s ources, pollution from hazardous waste treatment, storage, and disposal facilities, and emission st andards for hazardous air pollutants. Mr. Mason noted that the changes incorporate revisions to the Rules’ federal counterparts, except that some of the new standards were not incorporated w ithin 45 CSR 34, because they constituted unfunded mandates. Mr. Garvin was recognized, and he asked whether the failure to incorporate equated to a lack of regulation. Mr. Mason responded in th e negative, explaining that the monitoring and regulation would be performed by the federal governme nt. Mr. Garvin inquired as to the affected industries, and Mr. Mason referred to a list incl uding smaller gas facilities and paint-stripping shops.

### 4 Ms. Watson presented 45 CSR 37, detailing the budget trading program to reduce mercury emissions. Ms. Watson explained that the rule is being repealed as inconsistent with a federal appellate court decision, pending alternative action by the EPA. Mr. Garvin inquired whether the Rule repealed two years ago would be reinstatedupon revocation of the current version, to which Ms. Watson and Mr. Franks replied that it would not, if there had indeed been a previous rule in place, which was somewhat in question. Mr. Mas on explained that mercury emissions would be monitored and regulated as usual, except that budge t trading would not be available as a method of reduction. He also stated that there have been discussions on a national level as to whether to reinstate the federal mercury monitoring requirements. The Council then turned its atte ntion to the Water and Waste Management Rules. Ms. Watson presented 33 CSR 20, governing hazardous waste management systems. Ms. Watson explained that the Rule incorporated by reference its federal counterpart, the most salient change to which is its attempt to reduce disposal by permitting facilities to stage hazardous waste for three days pending recycling. Mr. Raney asked whether three days was sufficient time, and Mr. Cather responded in the affirmative. Mr. Franks presented 33 CSR 24, the Hazardous Waste Management Fee Rule. Mr. Franks explained that increases to the fee assessments are necessary to sustain the underlying Fund by ensuring sufficient matching revenue for federal grants . Ms. Price indicated her belief that, as part of the legislative compromise extending the fee’ s duration, no increases w ould be forthcoming until completion and review of the Fund’s legislative audit. Secretary Huffman responded that the preliminary audit findings in no way indicate any misallocation within the Fund or contravene the agency’s determination that fee increases are necessary. Ms. Lemmon was recognized, and she commented that the proposed increase was unfair to automobile and truck dealers, as well as other small generators. Ms. Lemmon suggested that a study be done to identify the industries causing DEP to incur program costs, with fee assessments to be made proportionately. Ms. Watson presented 33 CSR 22 and 47 CSR 56, govern ing the assessment of civil administrative penalties for, respectively, hazardous and solid wa ste violations and violations relating to groundwater. Ms. Watson explained th at the Rules were being modified for the first time since their initial promulgation, with the purpose of clarifying their application by listing additional factors to be considered in calculating penalties, providing ratings examples, and expanding facility categories. Ms. Watson then presented 47 CSR 31, addressi ng the State Water Pollution Control Revolving Fund. Ms. Watson explained that the proposed ch anges include the creation of a state review process for sewer projects in lieu of a wholesale a doption of the federal requirements. Mr. Roberts observed that many of the eligibility criteria woul d be deleted, but Ms. Emery assured the Council that inasmuch as the criteria were not being uni formly met, the deletion would have no practical effect on the Fund’s administration. Ms. Watson advi sed Mr. Roberts that if he continued to have concerns upon further review, he should submit written suggestions for changes during the formal comment period. Mr. Franks presented 47 CSR 32, governing the certif ication of laboratories conducting analyses of waste and wastewater. Mr. Franks explained thatthe proposed changes are designed to modernize

### 5 outdated procedures and protocols that have remained constant since 1995, and to increase program funding through increased certification fees and a new application fee. Mr. Raney asked whether the new fees would render the program self-sustaini ng, and Mr. Arnold replied that it would for the time-being. In response to further inquiry, Mr. Arnold stated that DEP conducts annual, on-site audits of commercial and industrial labs, with municipal labs typically audited every two years, depending on the experience of the support personnel. Ms. Watson presented 47 CSR 34, the Dam Safety Ru le. Ms. Watson explained that the Rule is being extensively augmented to govern disburseme nt and use of a new Re volving Fund to finance repair and rehabilitation of deficient dams. Secretary Huffman commented that it appeared imminent that the Legislature would approve a transfer of $350,000 from ex cess general revenue as seed money for the Fund. Lastly, Ms. Watson presented 47 CSR 2, the Water Quality Standards Rule. Ms. Watson explained that the proposed revisions are designed to clarif y the definition of Category A use, while providing specific standards to be applied in the permitting pr ocess to determine in a more streamlined fashion whether the use is unsuitable in cases of insuffi cient flow and hydrologic modification. Mr. Raney commented that the Category A determination proce ss has always been a significant problem for the coal industry. Ms. Price also agreed for her memb ers. Mr. Garvin noted that the environmental community had expressed some initial concern regarding the proposed streamlining mechanisms, but that there was some general support for taking the matter out of the legislative arena. Mr. Huffman affirmed that the revisions are designed solely for the benefit of the regulated public and that the revisions must include the clarification that Category A applies statewide. Ms. Watson reported that the rules will proceed to be filed with the Secretary of State, some perhaps as early as the week following the Council meeti ng, and that some will have an extended 45-day comment period. Mr. Franks requested closing comments from C ouncil members and from th e public. Following the cessation of discussion, Mr. Franks reminded the Council that the next meeting is scheduled for 1:30 p.m. on September 9, 2008. Secretary Huffman declared the meeting adjourned at 3:25 p.m.

### DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION OF AIR QUALITY BRIEFING DOCUMENT
Rule Title: 45CSR1 - “Control and Reduction of Nitrogen Oxides from Non-Electric Generating Units as a Means to Mitigate Transport of Ozone Precursors”
A. AUTHORITY: W.Va. Code §22-5-4
B. SUMMARY OF RULE: The Department of Environmental Protection is proposing to repeal NO X

### SIP Call rule 45CSR1. This rule contains ozone season NO X

### reduction requirements which apply to large fossil fuel-fired industrial boilers withheat inputs greater than 250 mmBtu/hr. 45CSR1 also contains ozone season NO X

### reduction requirements for certain large cement kilns and internal combustion engines. C. STATEMENT OF CIRCUMSTANCES WHICH REQUIRE RULE: This rule is being repealed pursuant to a requirement under the federal Clean Air Interstate Rule (CAIR), as the CAIR ozone season NO X

### reduction program under 45CSR40 will subsume the NO X

### SIP Call program as of May 1, 2009. Also, ozone season NO X 

### reduction requirements for large cement kilns and internal combustion engines identical to those in 45CSR1 will continue under 45CSR40, as of May 1, 2009. However, on July 11, 2008, the D.C. Court of Appeals rendered a decision to vacate CAIR. The DEP acknowledges the intimate relationship be tween 45CSR1, 45CSR26 and the seasonal NOx component of the CAIR. The DEP intends to withdraw the repeals of 45CSR1 and 45CSR26 if the relevant requirements of CAIR cannot be salvaged in a timely manner. However, because of the extension of th e time to file petitions for rehearing or rehearing en banc, a mandate to vacate the Clean Air Interstate Rule(CAIR) has not yet been ordered by the U.S. District Court of Appeals. Therefore the vacatur is not in effect at this time. There remains considerable uncertainty regarding the CAIR vacatur and its substantial ramifications. This issue has attracted national attention and c ould result in potential congressional action. DEP believes it prudent to wait until a more definitive indication of CAIR’s fate is recognized. Depending on future information regarding the vacatur of CAIR, the department may subsequently withdraw the proposed repeal of 45CSR1 in accordance with WV Code §29A3-14.

### Briefing Document 45CSR1 Page 2 D. FEDERAL COUNTERPART REGULATIONS - INCORPORATION BY REFERENCE/DETERMINATION OF STRINGENCY: Because repeal of the rule is a federal requirement under CAIR, no determination of stringency is required.
E. CONSTITUTIONAL TAKINGS DETERMINATION: In accordance with W.Va. Code §§22-1A-1 and 3(c), the Secretary has determined that the repeal of this rule will not result intaking of private property within the meaning of the Constitutions of West Virginia and the United States of America.
F. CONSULTATION WITH THE ENVIRONMENTAL PROTECTION ADVISORY COUNCIL: At its June 24, 2008 meeting, the Environmental Protection Advisory Council reviewed and discussed this rule. (See attached minutes for Council’s discussion).APPENDIX B 

## FISCAL NOTE FOR PROPOSED RULES Rule Title: 45CSRl - 

### Reduction of Nitrogen Oxides from Non-Electric Generating Units as a Means to Mitigate Transport of Ozone Precursors Type of Rule: 

### X Legislative Interpretive Procedural Agency: Division of Air Oualitv Address: 60 1 57thStreet SE Charleston, 

### WV 25304
Phone Number: 926-0499 ext. 1237 Email: tmowrer@,wdep.org - 

### Fiscal Note Summary Summarize in a clear and concise manner what impact this measure will have on costs and revenues of state government.

The Department of Environmental Protection, Division of Air Quality, is proposing to repeal 45CSR1, as the NOx Budget Trading Program will be subsumed by the Clean Air Interstate Rule under 45CSR40 on May 1, 2009. The proposed repeal of this rule should cause no additional impact on costs and revenues of state government.



### Fiscal Note Detail Show over-all effect in Item 1 and 2 and, in Item 

### 3, give an explanation of Breakdown by fiscal year, including long-range effect. 

### FISCAL 

### YEAR

Effect of Proposal 1. Estimated Total Cost Personal Services Current Expenses Repairs & Alterations Assets Equipment Other 2. Estimated Total Revenues 2010 IncreaseDecrease 

### 0 0 0 0 0 0 0 

### 0 2009 IncreaseDecrease 

## 1 0 0 0 0 0 0 0 

### 0 Fiscal Year (Upon Full Implementation) 

### 0 0 0 0 0 0 

### 0 0

### Rule Title: 45CSR1 - 

### Reduction of Nitrogen Oxides from Non-Electric Generating Units as a Means to Mitigate Transport of Ozone Precursors 

### Explanation of above estimates (including long-range effect): Please include any increase or decrease 

### in fees in your estimated total revenues. The proposed repeal of this rule will have no effect on the costs to the Division of Air Quality. Refer to above explanation.



## MEMORANDUM Please identify any areas of vagueness, technical defects, reasons the proposed rule 

### would not have a fiscal impact, and/or any special issues 

### not captured elsewhere on this form.

Date:

# WEST VIRGINIA 

# SECRETARY OF STATE Betty Ireland Db3bf Mark In This Box

. 

### .

NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE 

# ADMINISTRATIVE 

# LAW DIVISION Form #1

AGENCY: WV Department of Environmental Protection, Division of Air Quality TITLE NUMBER: 45 

# db

RULE TYPE: Legislative CITE AUTHORITY: A M E N D M E N T T O AN EX I S T I N G RU LE : Y E S 

# J N O 

# El IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSR1 REPEAL - Control and Reduction of Nitrogen Oxides from Non

- Electric Generating TITLE OF RULE BEING AMENDED: Units as a Means to Mitipate Trans~ort of Ozone Precursors

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: TITLE OF RULE BEING PROPOSED:

DATE OF PUBLIC HEARING: Monday, August 11,2008 TIME: 6:00 p.m. LOCATION OF PUBLIC HEARING: WV Department of Environmental Protection Coopers Rock Conference Room 601 57th Street, S.E.

DATE WRITTEN COMMENT PERIOD ENDS: Monday, August 

# ', 2008 TIME: At close of hearing WRITTEN COMMENTS MAY BE MAILED TO: The Department requests that persons wishing to make comments at the hearing make an effort to submit written WV Department of Environmental Protection 601 57th Street, S.E. comments in order to facilitate the review of thesk~@bi~e 

## Rule-Making Charleston. 

### w v 25304 The issues to be heard shall be limited to the proposed rule. - 

### 2 

## 2008
ATTACH A 

### BRIEF SUMMARY OF YOUR PROPOSAL 

# Review Committee

# WEST VIRGINIA

SECRETARY OF STATE

BETTY IRELAND 

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_ T ITLE OF RULE BEING AMENDE D: REPEAL

- Control and Reducti on of Ni trogen Oxides f rom Non

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. Generating Units as a Means to Mitigate Transport of Ozone Precur s ors

IF NO, SERIES NUMBER OF RU L E BEING P R O P OSE D:

_ TITLE OF RULE BEING PROPOSED :

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THE ABOVE PROPOSED LEGISLATIVE RULE HA VING GONE TO A PUBLIC HEARING ORA PUBLIC COMMENT PERIOD IS HEREBY APPROVED BY THE PRO MULGA TING AGENCY FOR FILING WITH THE SECRETARY OF STATE AND THE LEGISLA TIVE RULE-MAKING REVIEW COMMITTEE FOR THEIR REVIEW ,



## Legislative Rule-Making
AUG 

## 29 2008 

## Revtew 

## Committee

# WEST VIRGINIA

SECRETARY OF STATE NATALIE E. TENNANT 

# ADMINISTRATIVE LAW DIVISION Do Not Mark In This Box



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_ NonCE OF FINAL FILING AND ADOPTION OF A LEGISLATIVE RULE AUTHORIZED BY THE WEST VIRGINIA LEGISLATURE

AGENCY: WV Department of Environmental Protection, Division of Air Qual i ty AMENDMENT TO AN EXISTING RULE : YES ~ NO_ TITLE NUMBER: 45

IF YES , SERIES NUMBER OF RULE BEING AMENDED : 1

__ TITLE OF RULE BEING AMENDED: Repeal- Control and Reduction of Nitrogen Oxides from Non Electric Generating Units as a Means to Mitigate Transport of Ozone Precursors
IF NO, SERIES NUMBER OF RULE BEING PROPOSED:

_ TITLE OF RULE BEING PROPOSED :

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THE ABOVE RULE HAS BEEN AUTHORIZED BY THE WEST VIRGINIA LEGISLATURE

. AUTHORIZATION IS CITED IN (house or senate bill number)

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_ THIS RULE IS FILED WITH THE SECRETARY OF STATE. THIS RULE BECOMES EFFECTIVE ON THE FOLLOWING DATE:
~ 1'2009

. ~ Randy C. Huffman, Cabinet SecretaryWEST VIRGINIA LEGISLATURE Le gi slati v e Rule-Making Review Committe e S e nator Joseph M

inard , Cochair Delegate Bonnie Brown, Cochair Debra A. Graham, Chief Coun s el Felisha N. Sutherland, Administrative Assistant R ita A . Paul e y , Asso ci ate Couns e l Brian Skinner, Associate Counsel Charles Roskovensky, As s o c iate Counsel

Jay Lazell, Associate Counsel

Februar y 10, 2009 NO TI C E OF AC TI ON T AK EN BY THE LEGISLATI V E RULE- MAK I N G RE V IE W C OMM ITTEE TO: Bett y Ireland, Secretar y of State, State Register TO : John Benedict, Director DE P
- Air Q ualit y 601

- 57th Street, SE Charleston , WV 25304 FROM: Legislati v e Rule-Making Re v iew Committee Proposed Rule: Control and Reduction of Nitrogen O x ides from Non-Electric Ge n erating Units as a Means of Mitigate Transport of Ozone Precurso r s, 45CSRl The Legislati v e Rule- M aking Re v iew Committee Recommends that the West Vi rginia Legislature: 1
. Au thorize the age n c y to promulgate the Legislati v e rule: (A) as originall y filed (B) as modified b y the agenc y 2
. Authorize the agen cy to promulgate part o f t. i lE: Le g i s la t i' l e rule ; a statement of reasons for such recommendation is attached
. 3
. Authorize the agency to promulgate the Legislati v e rule w ith certain amendments ; amendments and a statement of reasons for such recommenda t ion is attached
. 4
. A ut ho rize the age n c y to promulgate the Legislati v e rule as modif ie d w ith certain amendments ; amendments and a statement of reasons for such recommendation is attached
. 5 . Recommends that the Legislature rule be withdra w n; a statement of reasons for such recommendation is attac h ed.

Building 1, Room M

B-49 Phone: (304) 347

-4840 1900 Kanawha Boulevard, East Charleston, WV 25 3 05 F ax : (304) 34 7

-4901 email:feiishas @m aiLw v net.edu

### 1 QUESTIONNAIRE (Please include a copy of this form with each filing of your rule: Notice of Public Hearing or Comment Period; Proposed Rule, and if needed, Emergency and Modified Rule.) 

### DATE: TO: LEGISLATIVE RULE-MAKING REVIEW COMMITTEE FROM:( Agency Name, Address & Phone No 

### .)

LEGISLATIVE RULE TITLE:

1. Authorizing statute(s) citation

2. a. Date filed in State Register with Notice of Hearing or Public Comment Period:

b. What other notice, including advertising, did you give of the hearing?

c. Date of Public Hearing(s) or Public Comment Period ended:

d. Attach

list of persons who appeared at hearing, comments received, amendments, reasons for amendments. Attached No comments received

### 2

e. Date you filed in State Register the agency approved proposed Legislative Rule following public hearing: (be exact)

f. Name, title, address and phone/fax/e-mail numbers of agency person(s) to receive all written correspondence regarding this rule: (Please type)

g. IF DIFFERENT

FROM ITEM ‘f’ , please give Name, title, address and phone number(s)

of agency person(s) who wrote and/or has responsibility for the contents of this rule: (Please type)

3. If the statute under which you promulgated the submitted rules requires certain findings and determinations to be made as a condition precedent to their promulgation:

a. Givethe date upon which you filed in the State Register a notice of the time and place of a hearing for the taking of evidence and a general description of the issues to be decided.

### 3

b. Date of hearing or comment period:

c. On what date did you file in the State Register the findings and determinations required together with the reasons therefor?

d. Attach findings and determinations and reasons: Attached

### ENROLLED 1 COMMITTEE SUBSTITUTE 2 FOR 3 **Senate Bill No. 153** 4 (S ENATORS 

### M INARD 

### , F ANNING 

### , P REZIOSO 

### , 5 U NGER 

### , B OLEY AND 

### F ACEMYER 

### , original sponsors ) 6

__________ 7 [Passed April 8, 2009; in effect from passage.] 8

__________ 9 10 11 AN ACT to amend and reenact article 3, chapter 64 of the Code of 12 West Virginia, 1931, as amended, relating generally to the 13 promulgation of administrative rules by the various executive 14 or administrative agencies and the procedures relating 15 thereto; continuing rules previously promulgated by state 16 agencies and boards; legislative mandate or authorization for 17 the promulgation of certain legislative rules; authorizing 18 certain of the agencies to promulgate certain legislative 19 rules in the form that the rules were filed in the State 20 Register; authorizing certain of the agencies to promulgate 21 certain legislative rule with various modifications presented 22 to and recommended by the Legislative Rule-Making Review 23 Committee; repealing certain legislative rules; authorizing 24 the Department of Environmental Protection to promulgate a 25

### legislative rule relating to standards of performance for new 1 stationary sources; authorizing the Department of 2 Environmental Protection to promulgate a legislative rule 3 relating to hazardous waste management systems; authorizing 4 the Department of Environmental Protection to promulgate a 5 legislative rule relating to the assessment of civil 6 administrative penalties; authorizing the Department of 7 Environmental Protection to promulgate a legislative rule 8 relating to the hazardous waste management fee; authorizing 9 the Department of Environmental Protection to promulgate a 10 legislative rule relating to surface mining reclamation; 11 authorizing the Department of Environmental Protection to 12 repeal a legislative rule relating to the control and 13 reduction of nitrogen oxides from nonelectric-generating units 14 as a means of mitigate transport of ozone precursors; 15 authorizing the Department of Environmental Protection to 16 promulgate a legislative rule relating to ambient air quality 17 standards; authorizing the Department of Environmental 18 Protection to promulgate a legislative rule relating to 19 permits for construction, modification, relocation and 20 operation of stationary sources of air pollutants, 21 notification requirements, administrative updates, temporary 22 permits, general permits, permission to commence construction 23 and procedures for evaluation; authorizing the Department of 24 Environmental Protection to promulgate a legislative rule 25

### relating to permits for construction and major modification of 1 major stationary sources of air pollution for the prevention 2 of significant deterioration; authorizing the Department of 3 Environmental Protection to promulgate a legislative rule 4 relating to the control of air pollution from hazardous waste 5 treatment, storage and disposal facilities; authorizing the 6 Department of Environmental Protection to repeal a legislative 7 rule relating to the Nox budget trading program as a means of 8 control and reduction of nitrogen oxides from electric9 generating units; authorizing the Department of Environmental 10 Protection to promulgate a legislative rule relating to 11 emission standards for hazardous air pollutants; authorizing 12 the Department of Environmental Protection to promulgate a 13 legislative rule relating to a mercury budget training program 14 to reduce mercury emissions; authorizing the Department of 15 Environmental Protection to promulgate a legislative rule 16 relating to the WV/NPDES rules for coal mining facilities; 17 authorizing the Department of Environmental Protection to 18 promulgate a legislative rule relating to the State Water 19 Pollution Control Revolving Fund; authorizing the Department 20 of Environmental Protection to promulgate a legislative rule 21 relating to environmental laboratories’ certification and 22 standards of performance; authorizing the Department of 23 Environmental Protection to promulgate a legislative rule 24 relating to dam safety; and authorizing the Department of 25

### Environmental Protection to promulgate a legislative rule 1 relating to the assessment of civil administrative penalties; 2 authorizing the Department of Environmental Protection to 3 promulgate a legislative rule relating to voluntary 4 remediation and redevelopment. 5 Be it enacted by the Legislature of West Virginia: 6 That article 3, chapter 64 of the Code of West Virginia, 1931, 7 as amended, be amended and reenacted to read as follows: 8 **ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL** 9 **PROTECTION TO PROMULGATE LEGISLATIVE RULES.** 10 **§64-3-1. Department of Environmental Protection.** 11 (a) The legislative rule filed in the State Register on August 12 28, 2008, authorized under the authority of section four, article 13 five, chapter twenty-two of this code, relating to the Department 14 of Environmental Protection (standards of performance for new 15 stationary sources, 45 CSR 16), is authorized. 16 (b) The legislative rule filed in the State Register on August 17 29, 2008, authorized under the authority of section six, article 18 eighteen, chapter twenty-two of this code, modified by the 19 Department of Environmental Protection to meet the objections of 20 the legislative rule-making review committee and refiled in the 21 State Register on October 24, 2008, relating to the Department of 22 Environmental Protection (hazardous waste management systems, 33 23 CSR 20), is authorized. 24 (c) The legislative rule filed in the State Register on August 25

### 28, 2008, authorized under the authority of section fifteen, 1 article fifteen, chapter twenty-two of this code, modified by the 2 Department of Environmental Protection to meet the objections of 3 the legislative rule-making review committee and refiled in the 4 State Register on November 21, 2008, relating to the Department of 5 Environmental Protection (assessment of civil administrative 6 penalties, 33 CSR 22), is authorized. 7 (d) The legislative rule filed in the State Register on August 8 26, 2008, authorized under the authority of section twenty-two, 9 article eighteen, chapter twenty-two of this code, modified by the 10 Department of Environmental Protection to meet the objections of 11 the legislative rule-making review committee and refiled in the 12 State Register on October 24, 2008, relating to the Department of 13 Environmental Protection (hazardous waste management fee, 33 CSR 14 24), is authorized. 15 (e) The legislative rule filed in the State Register on August 16 29, 2008, authorized under the authority of section four, article 17 three, chapter twenty-two of this code, modified by the Department 18 of Environmental Protection to meet the objections of the 19 legislative rule-making review committee and refiled in the State 20 Register on February 17, 2009, relating to the Department of 21 Environmental Protection (surface mining reclamation, 38 CSR 2), is 22 authorized. 23 (f) The legislative rule filed in the State Register on August 24 29, 2008, authorized under the authority of section four, article 25

### five, chapter twenty-two of this code, relating to the Department 1 of Environmental Protection (control and reduction of nitrogen 2 oxides from nonelectric-generating units as a means of mitigate 3 transport of ozone precursors, 45 CSR 1), is authorized. 4 (g) The legislative rule filed in the State Register on August 5 29, 2008, authorized under the authority of section four, article 6 five, chapter twenty-two of this code, modified by the Department 7 of Environmental Protection to meet the objections of the 8 legislative rule-making review committee and refiled in the State 9 Register on November 21, 2008, relating to the Department of 10 Environmental Protection (ambient air quality standards, 45 CSR 8), 11 is authorized. 12 (h) The legislative rule filed in the State Register on August 13 29, 2008, authorized under the authority of section four, article 14 five, chapter twenty-two of this code, relating to the Department 15 of Environmental Protection (permits for construction, 16 modification, relocation and operation of stationary sources of air 17 pollutants, notification requirements, administrative updates, 18 temporary permits, general permits, permission to commence 19 construction and procedures for evaluation, 45 CSR 13), is 20 authorized. 21 (i) The legislative rule filed in the State Register on August 22 29, 2008, authorized under the authority of section four, article 23 five, chapter twenty-two of this code, modified by the Department 24 of Environmental Protection to meet the objections of the 25

### legislative rule-making review committee and refiled in the State 1 Register on January 16, 2009, relating to the Department of 2 Environmental Protection (permits for construction and major 3 modification of major stationary sources of air pollution for the 4 prevention of significant deterioration, 45 CSR 14), is authorized. 5 (j) The legislative rule filed in the State Register on August 6 29, 2008, authorized under the authority of section four, article 7 five, chapter twenty-two of this code, relating to the Department 8 of Environmental Protection (control of air pollution from 9 hazardous waste treatment, storage and disposal facilities, 45 CSR 10 25), is authorized. 11 (k) The legislative rule filed in the State Register on August 12 29, 2008, authorized under the authority of section four, article 13 five, chapter twenty-two of this code, relating to the Department 14 of Environmental Protection (Nox budget trading program as a means 15 of control and reduction of nitrogen oxides from electric16 generating units, 45 CSR 26), is authorized. 17 (l) The legislative rule filed in the State Register on August 18 29, 2008, authorized under the authority of section four, article 19 five, chapter twenty-two of this code, relating to the Department 20 of Environmental Protection (emission standards for hazardous air 21 pollutants, 45 CSR 34), is authorized. 22 (m) The legislative rule filed in the State Register on August 23 29, 2008, authorized under the authority of section four, article 24 five, chapter twenty-two of this code, relating to the Department 25

### of Environmental Protection (mercury budget training program to 1 reduce mercury emissions, 45 CSR 37), is authorized. 2 (n) The legislative rule filed in the State Register on August 3 28, 2008, authorized under the authority of section four, article 4 eleven, chapter twenty-two of this code, modified by the Department 5 of Environmental Protection to meet the objections of the 6 legislative rule-making review committee and refiled in the State 7 Register on February 17, 2009, relating to the Dep artment of 8 Environmental Protection (WV/NPDES rules for coal mining 9 facilities, 47 CSR 30), is authorized. 10 (o) The legislative rule filed in the State Register on August 11 28, 2008, authorized under the authority of section three, article 12 two, chapter twenty-two-c of this code, relating to the Department 13 of Environmental Protection (state water pollution control 14 revolving fund, 47 CSR 31), is authorized. 15 (p) The legislative rule filed in the State Register on August 16 28, 2008, authorized under the authority of section fifteen, 17 article one, chapter twenty-two of this code, modified by the 18 Department of Environmental Protection to meet the objections of 19 the legislative rule-making review committee and refiled in the 20 State Register on December 12, 2008, relating to the Department of 21 Environmental Protection (environmental laboratories certification 22 and standards of performance, 47 CSR 32), is authorized. 23 (q) The legislative rule filed in the State Register on August 24 28, 2008, authorized under the authority of section six, article 25

### eighteen, chapter twenty-two of this code, modified by the 1 Department of Environmental Protection to meet the objections of 2 the legislative rule-making review committee and refiled in the 3 State Register on January 22, 2009, relating to the Department of 4 Environmental Protection (dam safety, 47 CSR 34), is authorized. 5 (r) The legislative rule filed in the State Register on August 6 28, 2008, authorized under the authority of section ten, article 7 twelve, chapter twenty-two of this code, modified by the Department 8 of Environmental Protection to meet the objections of the 9 legislative rule-making review committee and refiled in the State 10 Register on November 21, 2008, relating to the Department of 11 Environmental Protection (assessment of civil administrative 12 penalties, 47 CSR 56), is authorized. 13 (s) The legislative rule filed in the State Register on August 14 25, 2008, authorized under the authority of section three, article 15 twenty-two, chapter twenty-two of this code, relating to the 16 Department of Environmental Protection (voluntary remediation and 17 redevelopment, 60 CSR 3), is authorized. 18